Compliance with NOC conditions is essential for the lawful operation of telecom installations, and interim restraints can be lifted upon establishing such compliance.

ORDER :

Heard Mr. Sardessai, learned Senior Advocate for the Applicant;

Mr. D. Pangam, learned Advocate General for the first and second Respondents; Mr. Faldessai, learned Deputy Solicitor General for the fourth Respondent; and Mr. Nigel Da Costa Frias, learned Counsel for the Respondent nos. 5 to 24.

2. This application seeks vacation/variation of Orders dated 17.12.2021 and 16.02.2022, by which this Court had granted interim relief restraining the Applicant [original Respondent no.3 in Writ Petition no.2250 of 2021 (F)] from operating the telecom tower installed in the property surveyed under no. 125/5 of Colva, Salcete, Goa, pending hearing and final disposal of the Petition.

3. From the perusal of our Orders dated 18.11.2021, 16.12.2021, 17.12.2021 and 16.02.2022, it is apparent that the interim Orders were made because this Court found that the Applicant had prima facie failed to comply with the conditions in clauses 8 and 9 of the NOC dated 01.06.2021 issued by the State of Goa. Compliance with these conditions was crucial to operating the tower.

4. Clauses 8 and 9 of the NOC dated 01.06.2021 read as follows :

"8. Upon erection and testing of GBM, the Agency shall produce:-

A) Copy of SACFA clearance/copy of SACFA application for the said location submitted in WPC wing of DoT with registration number as WPC acknowledgment along with undertaking that in case of any objection/rejection, TSPs will take corrective actions/remove the tower.

B) Copy of the type test certificate issued by Automotive Research Association of India (ARAI) to the manufacturers of Diesel Generator (DG) sets.

C) Copy of clearance from Fire Safety Department only in case for high rise buildings where Fire Clearance is mandatory.

D) Acknowledgement receipts issued by TERM cells (DoT) of the self certificate submitted by Telecom Service provider/Infrastructure provide in respect of mobile tower/BTS (ground based/roofto/Pole/wall mounted) establishing/certifying that all General Public areas around the tower will be within safe Electro-magnetic Radiation (EMR) exposure limit as per peak traffic measurement after the antennas starts radiating.

9. Upon full completion & testing of GBM/RBM & submission of mandatory documents as above, the Agency shall intimate this office the intention of commissioning of said GBM/RBM, which shall be then inspected by this office, without which no commissioning shall be undertaken."

5. In the context of compliance with the above-referred clauses 8 and 9, a memo dated 17.01.2023 was placed on record by the Advocate for the first and second Respondent, i.e. the State Government. To this memo was annexed a report dated 13.01.2023, made by Executive Engineer-VI, PWD, Fatorda, Margao, Goa. To this Memo was also annexed a report dated 09.01.2023 of the Assistant Engineer-IV, PWD, Fatorda, Margao, Goa. The memo and both these reports, in clear and unequivocal terms, state that the Applicant has now complied with the conditions in clauses 8 and 9 of the NOC dated 01.06.2021.

6. The learned Advocate General also confirmed that the Applicant has now complied with the conditions in clauses 8 and 9 of the NOC dated 01.06.2021. Even Mr. Nigel Costa Frias did not dispute that the Applicant has complied with the conditions in clauses 8 and 9 of the NOC dated 01.06.2021.

7. Based upon the above and considering the specific liberty which we had granted to the Applicant to apply for variation/vacation, once there was compliance with the conditions in clauses 8 and 9 of the NOC dated 01.06.2021 (vide our Order dated 16.02.2022), normally, we would have agreed to the request for vacation of the restraint order without considering the other issues raised in the main petition.

8. However, Mr. Costa Frias, the learned Counsel for the original Petitioners, referred us to the alternative prayer clause (b) of the Civil Application No. 614 of 2023 seeking directions to the Public Works Department to carry out necessary inspection of the site and report on complia